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Wrongful Dismissal

Understanding What Wrongful Dismissal Is and How to Identify It

British Columbia has a robust system of employee protections under the law that prevent workers from being wrongfully dismissed. Wrongful dismissal occurs when an employee in British Columbia is terminated without proper notice or compensation. When this happens, the employee has legal options which allow them to receive compensation for an employer’s wrongdoing.

British Columbia’s Employment Standards Act (ESA), sets forth employee and employer responsibilities within an employment arrangement. The following list of wrongful dismissal examples can help understand when wrongful dismissal has occurred to you.

Termination Doesn’t Always Amount to Wrongful Dismissal

Whether you are a full-time, part-time, or a contracted employee, the law states that employees employed by private companies can be terminated at any time, as long as it is justified or the proper notice or compensation is provided. However, if you experienced one of the following scenarios, you could be the victim of wrongful dismissal.

Failure to Provide Notice

According to BC’s Employment Standards Act, the required amount of notice is determined by factors like duration of employment, position worked, and the availability of comparable jobs. The ESA does not define the amount of notice required outright but rather, sets minimum standards for what is legally acceptable notice. The court will examine whether the notice given was appropriate on a case by case basis. Even entry-level and short-term employees have rights and should contact a lawyer if they believe they have been wrongly dismissed without notice.

Failure to Provide Compensation

While employers often choose to provide notice, they are also able to offer compensation in lieu of notice. The employer may prefer compensation because they are inside an unacceptable window of notice for termination. Some employers may prefer compensation when determining notice is too difficult due to the range of pay and benefits an employee receives or other factors.

Types of compensation that must be accounted for in a termination arrangement or formal severance package are:

  • Bonuses
  • Stock options
  • RRSP contributions
  • Medical coverage and health benefits
  • Disability coverage
  • Life insurance

Employers can choose to provide cash compensation for the full value of benefits or non-cash compensation if determining that value is too difficult. Contact a lawyer if you believe compensation does not equal the full value of your contract.

ESA Minimums for Notice and Compensation

  • For 3 months of consecutive employment, at least 1 week’s notice or pay is required.
  • For 12 months of consecutive employment, at least 2 weeks’ notice or pay is required.
  • For 3 years of consecutive employment, an additional week’s notice or pay for each additional year of service, up to a maximum of 8 weeks.

Constructive Dismissal

Constructive dismissal, also called “disguised dismissal,” occurs when either ESA or common law employment standards are violated when an employer changes the terms of employment without employee consent. Whether the employee accepts the new terms or not, this action is illegal. This illegality reaches the level of constructive dismissal if the employee quits in response to being treated unfairly.

Examples of Constructive Dismissal

If a person’s job descriptions and responsibilities are modified outside of their original terms of employment or pay and benefits are reduced with or without a change in job responsibilities, this could constitute constructive dismissal.

Employers may attempt to avoid paying notice or compensation by forcing an employee out through constructive dismissal. If an employee responds to changes in employment terms by quitting, this is called “quitting for cause.” Quitting for cause can be treated similarly to wrongful dismissal with employers required to compensate employees in line with their original terms of employment, including what would have been required to dismiss them legally.

Human Rights Dismissal

Similar to constructive dismissal, human rights dismissal is illegal. Human rights dismissal occurs when an employee’s rights are violated either because they are fired for reasons that constitute discrimination or they leave a job due to discriminatory treatment.

Examples of Human Rights Dismissal

Human rights codes in British Columbia and Canada at large prohibit discrimination in the course of employment based on skin colour, race, marital status, family background, religion, sex, sexual orientation, or disability.

Specific examples include:

  • Firing a person because they are pregnant.
  • Allowing or engaging in sexual comments about appearance, clothing, or body parts.
  • Forcing an employee to retire due to age.
  • Refusing to make arrangements for an employee’s religious observance.

Quitting, Getting Fired, or Being Laid Off

Understanding whether someone has been wrongfully dismissed requires determining whether someone quit, was fired, or was laid off.

Neither notice nor pay is required when an employee is terminated when:

  • They have worked for less than three months.
  • They were hired to complete a specific project lasting 12 months or less.
  • The employee quits or retires.
  • Their contract expires.
  • An unforeseeable event (typically non-financial) prevents work from being done, like in a natural disaster.
  • The terminated employee refuses to accept reasonable alternative employment.
  • They are fired with cause.